Feeling secure in your persons, houses, papers, and effects?

Does anyone still remember the Fourth Amendment?

Here’s the outmoded, out-of-style text written by dead white men who owned slaves:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While most of us would like to think that the above would apply to telephones, telephone records, and address books, apparently the police here in Michigan do not:

DETROIT — The Michigan chapter of the American Civil Liberties Union is questioning the Michigan State Police’s use of cellphone “extraction” devices.

The ACLU said MSP has used the devices to access information from cellphones that officers ask drivers they have pulled over to give them.”It can contain information that many people consider to be private, to be beyond the reach of law enforcement and other government actors,” said Mark Fancher, an ACLU attorney.

(Via Radley Balko.)

So, unless the ACLU is making this up, the cops are pulling people over for traffic violations and then extracting the contents of their cell phone records without obtaining a search warrant. My cell phone would these days be considered “minimal” as it is just a plain old cell phone with a mediocre little camera. But it has accumulated phone numbers of my friends and contacts, as well as personal pictures, and if the police did that to me during a traffic stop, they would not only be searching my personal papers and effects and invading my privacy, they’d also be invading the privacy of my friends. A lot of people use cell phones which have tons more information including email correspondence, business and financial records, and the usual details of their entire personal lives.

That some asshole cop who pulls you over can search you in this way is no mere annoyance; it is simply an outrage. Is Michigan alone in doing this? I read on and saw Homeland Security mentioned, but nothing about other state police agencies.

The ACLU is asking why the state police is using devices that can gather data stored on cellphones, and why it is not telling the public about it. The ACLU said the devices could violate Fourth Amendment rights.

“There is great potential for abuse here by a police officer or a state trooper who may not be monitored or supervised on the street,” Fancher said.MSP released a statement this week that said it is working “in accordance with the Freedom of Information Act.””The State Police will provide information in accordance with the Freedom of Information Act … there may be a processing fee to search for, retrieve, examine and separate exempt material … ,” MSP said in a statement.Fancher said MSP priced that information, pertaining to five devices, at about $500,000.”This should be something that they are handing over freely, and that they should be more than happy to share with the public — the routines and the guidelines that they follow,” Fancher said.The national ACLU has asked similar questions about the U.S. Department of Homeland Security’s use of devices to gather information from travelers’ computers and cellphones.

So the State Police wants $500,000 to examine the data from five devices? That’s $100,000 per device. Sounds like a coverup to me.

Now that the Republicans control the state legislature and the governor’s office, I certainly hope they do something about this, because this comes on the heels of legislation passed previously that allows police and other government bureaucrats to rifle through patients’ prescription records in the hope of catching violations of the drug laws. And pending legislation which would make Michigan the first state in the country to perform invasive roadside saliva testing without search warrants. (Feeling secure in your fluids?) There is such near-total disregard for the Fourth Amendment in this state that it borders on outright contempt. Michigan is not alone, and the Supreme Court isn’t much better.

Not everyone on the right likes the ACLU, and I share some of their concerns. The ACLU panders to the left shamelessly, and it has a long record of treating the Second Amendment as a blank spot in the Bill of Rights. But where are the right wing organizations and think tanks when the Fourth Amendment is being shredded? Do they think it’s some left wing loophole for criminals? What will it take to convince them? Do the cops have to download some prominent conservative’s Blackberry?

Oh, I forgot. People who are doing nothing wrong have nothing to hide.

And the innocent have nothing to fear…..

UPDATE: Glenn Reynolds linked a Popular Mechanics article with much more on the subject, including a discussion of the Fourth Amendment issues. The device they’re using does a lot more than look at the last number you dialed to see whether a driver might have been distracted:

…The device used by the Michigan State Police is a portable forensic system called the Cellebrite UFED that can suck data from a variety of devices, including multiple Android phones and Apple iOS devices such as the iPhone and iPad. The company did not immediately return phone calls, but according to Cellebrite’s product description, the UFED can grab email, Web bookmarks, Web history, SIM data, cookies, notes, MMS, instant messages, Bluetooth devices, locations, journeys, GPS fixes, call logs, text messages, contacts and more.

This type of forensic device is nothing new, but the ACLU’s concern is that the UFED mobile units might have been used in routine traffic stops–which, the ACLU contends, would violate the Fourth Amendment’s protections against unreasonable search and seizure.

That Michigan police have this technology and are using it is very worrisome. A Florida legal expert is quoted:

Logan [a Fourth Amendment expert from Florida State University] told us that there is currently disagreement in the courts about whether cellphones, and smartphones in particular, can be searched after a person is arrested. “One way of looking at it is that phones are just like any other container. Let’s say I’m stopped for speeding and the police find cocaine, and then I’m arrested for cocaine possession; the police could search my car. They could also search any duffel bags that were in my car, and let’s say that I had a box of notecards–they could search that. If [an officer] can search that container of notecards, the question becomes: Can he also search my iPhone, which also contains note cards of a sort? But the other argument is that it differs completely in kind, since the type of information on the phone is so different.” Logan agrees that, if not under arrest, a citizen is under no legal obligation to surrender a phone. But it is unclear whether people have been volunteering their phones to the Michigan State Police or police seized those phones during arrests.

The law gets even more complicated when it comes to moving violations that involve the phone itself–such as if you were charged with talking on your phone while driving. Logan says the phone could contain evidence about the violation and therefore might be subject to seizure. However, Michigan has no law prohibiting the use of cellphones in automobiles, so that couldn’t apply there.

My understanding is that while Michigan law does not prohibit the use of cell phones in automobiles (Detroit allows “hands free” only), texting by drivers is prohibited. Which means that if a cop saw what he thought looked like texting by a driver (even though he might be dialing a number), he could pull him over and “investigate.” Once he has the right to be inside the container, would the “plain view” doctrine then apply?

It’s getting to the point where the police think they have the right to be anywhere and do anything, and if the ACLU report is accurate, I hope the legislature intervenes soon.

The use of this technology will spread. Police like it because it gives them a feeling of power and they can rationalize it by saying it helps them detect crime.

What is needed is for people who can handle the truth to take a closer look at the Fourth Amendment in light of the founders’ intent. I did, and it was a real eye-opener.